Judge Denies Scrushy's Motion to Recuse - WSFA.com Montgomery Alabama news.

Judge Denies Scrushy's Motion to Recuse

MONTGOMERY, Ala., April 27, 2007 --  Lost in all the hubbub over the setting of a sentencing date for Richard Scrushy and former Governor Don Siegelman was Judge Fuller's order denying Mr. Parkman's motion for Judge Fuller to recuse himself from the case.  We learned from the judge more about what the sealed motion that had generated endless speculation was seeking:

"The Motion to Recuse and Motion for Vacatur or New Trial Based on Newly Discovered Evidence (Doc. # 550) asks the undersigned to recuse himself from this case so that the Eleventh Circuit Court of Appeals can appoint a new trial judge from outside of Alabama to handle case. Additionally, it asks that Scrushy's conviction be set aside or that he be granted a new trial. Scrushy maintains that the relief he seeks is required because he recently discovered evidence that he contends suggests that the undersigned had a duty to recuse himself from presiding over this trial or in the alternative to obtain a waiver from Scrushy of a potential conflict of interest.

In support of all relief requested in his motions, Scrushy contends that recusal is warranted because the undersigned owns stock in and receives income from privately held companies which derive income from several contracts with the United States Government.

For example, Scrushy notes that the Federal Bureau of Investigations, a federal governmental agency which was involved with the criminal investigation leading up to the charges against Scrushy in this case, purchases clothing from a company in which the undersigned is a shareholder. Additionally, Scrushy identifies several contracts between the company in which the undersigned is a shareholder and the armed forces of the United States Government. Scrushy adds that Stephen P. Feaga ("Feaga"), one of the Assistant United States Attorneys involved in the prosecution of this case, is a Colonel in the United States Air Force Reserve and as such is assigned to Langley Air Force Base, a base where the company in which the undersigned owns shares has a contract for fuel distribution services.

Scrushy speculates that Feaga, or someone he works with in the United States Air Force, must have had some involvement in the review, amendment, and approval of the United States Air Force's contracts. Scrushy's argument eventually devolves into a statement that the Executive Branch of the United States Government, including the President of the United States, is keenly interested in the legal proceedings against Scrushy because of the publicity associated with various corporate scandals by companies such as Enron, WorldCom, and Tyco.

In Scrushy's subjective view, this criminal prosecution against him arises not out of any criminal conduct in which he engaged, but rather stems from the United States Government's desire to obtain a conviction against him after he was acquitted of charges against him stemming from his conduct as Chief Executive Office of HealthSouth. Scrushy theorizes that the Executive Branch of the United States Government might punish the undersigned by denying or canceling contracts between the United States Government and the company in which the undersigned owns shares if it disagreed with the undersigned's rulings in this case."

We stil haven't seen the original motion and most likely will not.  It is still not clear why the judge is reluctant to mention the name of companies involved.  We know one of the companies the judge has stock in is Doss Aviation - they have the fuel operations contracts at many Air Force bases including Langley.  Doss Aviation is listed on the judge's financial disclosure reports.

In a footnote the judge says he "is currently, and has been for several years, a shareholder in several privately held companies which derive income from customers which include, but are not limited to, various agencies of the United States Government. Scrushy is incorrect in his assertion that the undersigned is currently an officer, director, or fiduciary to such companies. In fact, since taking the federal bench in 2002, the undersigned has only been a shareholder in the companies. These investments have resulted in income to the undersigned. Both the income and the investments are reported each year in Financial Disclosure Reports as required by the Ethics in Government Act of 1978, 5 U.S.C. §§ 101-111. "

The judge, reiterating what he had said in a previous order, says he kept the document out of public view for the following reasons:

"The Court's decision to grant Scrushy's request that the Motion to Recuse and Motion for Vacatur or New Trial Based on Newly Discovered Evidence (Doc. # 550) and the supporting brief and exhibits be placed under seal was based in part on Scrushy's request for the materials to be sealed and in part on Scrushy's blatant disregard for the requirements of the E-Government Act of 2002, as amended on August 2, 2004, and the General Order Implementing Requirements of the E-Government Act entered by this Court on December 16, 2004 (General Order No. 2:04-mc-3228). Scrushy's filings included documents which were filed without redacting Social Security Numbers, dates of birth, and addresses of individuals, including third parties wholly unrelated to this action and the undersigned."

Only Mr. Parkman knows why he would file a document in that condition and it doesn't get any easier for Mr. Parkman.

"The Court does not find that the legal precedents Scrushy cites compel the result Scrushy demands.12 Many of the cases Scrushy cites in his brief actually hold that disqualification is not warranted. ...

Presumably, Scrushy cites these cases for the broad statements they make about the applicable legal principles rather than the specific holdings which do not support his position. While two of the cases which Scrushy has invoked did hold that disqualification was warranted, the factual predicate of those case is neither similar nor analogous to the facts presented by Scrushy's motion. "

And in a footnote, the judge uses the motion's own words to say the legal arguments cited don't wash, "Indeed by stating "there is no case law"directly on point with the facts and matters raised herein and therefore this matter is a case of first impression" Scrushy's own brief acknowledges that the cases he cites do not clearly support his position. See Doc. # 551 at p. 13."

Judge Fuller went on to cite the case of United States v. Zuger in which "the defendant argued that the district court judge should recuse himself because the United States government paid his salary. 602 F. Supp. at 892. The district judge held that the fact that the United States government paid his salary neither dictated nor suggested that he should recuse under Section 455(a). In so ruling, the district court judge characterized Zuger's argument as "farsical, on its face." Id."

"In this case, Scrushy has not sought to disqualify the undersigned because the United States directly pays his salary for serving as a judicial officer. Scrushy points instead to the financial benefits that the undersigned derives from ownership of shares in private companies which have contractual relationships with a variety of entities, including but not limited to, various branches of the United States government.

Scrushy's argument is predicated on a less direct and more tenuous connection between the undersigned and the United States.  Moreover, Scrushy's argument is not predicated on an objectively reasonable analysis of the indirect ties between the undersigned and the United States government. The mere indirect receipt of financial benefit from ownership interest in the shares of private companies which have obtained competitively bid contracts with the United States government should not disqualify the undersigned from presiding over federal criminal prosecutions brought by the United States government.

Having considered the relevant facts and disregarded the rank speculation, the Court finds that no objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the undersigned's impartiality.  Accordingly, Section 455(a) does not require disqualification. For this reason, all relief sought in Scrushy's Motion to Recuse and Motion for Vacatur or New Trial Based on Newly Discovered Evidence (Doc. # 550) is due to be DENIED."

The judge said the same thing in a footnote "Were this Court to hold otherwise, it would require the undersigned to recuse himself in all criminal cases and in any civil case in which the United States was a party."

Mr. Parkman had told me previously he was not going to comment on what was in a sealed motion.

Reported by:  Helen Hammons

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